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Case 1:17-cv-01167-JEB Document 76 Filed 03/01/19 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

CABLE NEWS NETWORK, INC.,


Civil Action No. 1:17-cv-01167-JEB
Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION,

Defendant.

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION FOR ACCESS TO


SEALED JUDICIAL RECORDS

INTRODUCTION

This action involves a request submitted by plaintiff Cable News Network (“CNN” or

plaintiff) to defendant Federal Bureau of Investigation (“FBI”) under the Freedom of Information

Act (“FOIA”), 5 U.S.C. § 552. Plaintiff requested records created by then-Director of the FBI,

James B. Comey, documenting his interactions with President Donald J. Trump; these records

have been referred to as the “Comey Memos.” On February 2, 2018, this Court held that the FBI

had conducted an adequate search for the Comey Memos and had properly withheld them in full

under FOIA Exemption 7(A), 5 U.S.C. § 552(b)(7)(A), which protects documents compiled for

law enforcement purposes where their disclosure “could reasonably be expected to interfere with

enforcement proceedings.” Cable News Network v. FBI (“CNN v. FBI”), 293 F. Supp. 3d 59

(D.D.C. 2018). CNN appealed but, while the appeal was pending, redacted versions of the

Comey Memos were made public. The court of appeals subsequently remanded the appeal to
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this Court for it to consider the propriety of the limited redactions made to the public version of

the memos, which this Court had not previously considered.

In the course of defending its prior assertion of FOIA Exemption 7(A) over the entirety

of the “Comey Memos,” the FBI submitted two declarations for this Court’s in camera and ex

parte review—the In Camera, Ex Parte Declaration of the FBI, see Dkt. No. 23 (later identified

as being written by David W. Archey, Deputy Assistant Director in the Counterintelligence

Division of the FBI), and the Third Declaration of David W. Archey, see Dkt. No. 47.1 On the

Court’s request, the FBI also presented a sealed, on-the-record ex parte proffer from an attorney

from the Special Counsel’s Office. CNN v. FBI, 293 F. Supp. 3d at 67. In the present motion,

plaintiff seeks access to these materials.

In recognition that circumstances have changed since the Archey Declarations were

originally submitted to the Court, namely, that the Comey Memos have been released with only

limited redactions, the FBI has reviewed the First and Third Archey Declarations and determined

that these also can also be released with limited redactions. The redacted declarations are

attached to the declaration of Michael Seidel, Acting Section Chief of the Record/Information

Dissemination Section of the Information Management Division of the FBI, submitted with the

FBI’s combined opposition to plaintiff’s cross-motion for summary judgment and reply in

further support of the FBI’s motion for summary judgment. The FBI has determined that certain

portions of the declarations should continue to be withheld in order to avoid adversely affecting

the ongoing investigation by the Special Counsel’s Office into Russian interference in the 2016

1
The Second Declaration of David W. Archey, also filed in camera and ex parte, see
Dkt. No. 46, concerned records other than the Memos; these other records were responsive to the
requests at issue in the other cases consolidated with this case. The Second Archey Declaration
is not at issue in plaintiff’s present motion.
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election. See Seidel Decl. ¶ 8. As the Court is aware, the on-the-record proffer also contains

highly sensitive information about the Special Counsel’s investigation, the release of which

would adversely affect the investigation. The Court should continue to keep the material

redacted from the declarations and the proffer in confidence and should deny plaintiff’s motion

for access.

The government recognizes that ex parte submissions of information are disfavored and,

accordingly, has sought to release as much of the original declarations as possible. However, the

continued protection of a limited amount of the ex parte material is necessary to accommodate

the government’s compelling interest in protecting law-enforcement sensitive information and

the ongoing investigation. Because the disputed submissions are limited and justified, plaintiff’s

motion for access to these submissions should be denied.

ARGUMENT

PLAINTIFF’S MOTION FOR ACCESS TO THE COMPLETE IN CAMERA, EX PARTE


DECLARATIONS AND THE HEARING PROFFER SHOULD BE DENIED

As stated above, the FBI has determined that release of large portions of the First and

Third in camera, ex parte Archey Declarations is now appropriate and is producing those

declarations herewith in redacted form. The FBI assumes for the purposes of this opposition

memorandum that plaintiff will continue to request access to the redacted portions of these

declarations, as well as to the record of the ex parte hearing. These requests should be denied.

A. The Submission of In Camera, Ex Parte Declarations is Well Accepted in FOIA


Cases, Such As Here Where Law Enforcement Sensitive Information is at Issue

The submission of in camera, ex parte declarations is well accepted in FOIA cases where

circumstances warrant, in particular where classified information is at issue or where, as here,

Exemption 7(A) is asserted. The courts have recognized, in such circumstances, it may be
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necessary for the government to submit additional explanation in camera and ex parte about why

release of the material at issue would harm national security or a pending law enforcement

investigation, because revealing such explanation on the public record would disclose the very

information that the agency is seeking to withhold. Where “an agency indicates that no

additional information concerning an investigation may be publicly disclosed without revealing

precisely the information that the agency seeks to withhold, the receipt of in camera declarations

is appropriate.” Barnard v. Dep’t of Homeland Sec., 598 F. Supp. 2d 1, 16 (D.D.C. 2009); see

also Maydak v. U.S. Dep’t of Justice, 218 F.3d 760, 767 (D.C. Cir. 2000) (noting that, in FOIA

cases, the government can request “that the court review the index or the requested documents in

camera, on the grounds that the production and disclosure of a Vaughn index will in fact disclose

the very information the government seeks to protect”); Arieff v. U.S. Dep’t of Navy, 712 F.2d

1462, 1469 (D.C. Cir. 1983) (“the receipt of in camera affidavits is . . . , when necessary, part of

a trial judge’s procedural arsenal,” including in cases involving Exemption 7(A) (internal

quotation marks and citation omitted.).

Accordingly, in camera submissions are routinely permitted and relied upon in such FOIA

cases. See Elec. Privacy Info. Ctr. v. Dep’t of Justice Crim. Div., 82 F. Supp. 3d 307, 315 n.4,

321 (D.D.C. 2015) (upholding assertion of Exemption 7(A) based in part on in camera, ex parte

declaration); Barnard, 598 F. Supp. 2d at 20 (same); Minute Order, Judicial Watch, Inc. v. CIA,

Case No. 17-cv-397 (TSC) (D.D.C. Sept. 30, 2017) (granting leave for defendants to “redact law

enforcement sensitive information on the publicly filed version of the FBI’s filings and [to] file

unredacted versions of the FBI’s filings ex parte and in camera”); Order Granting Motion For

Leave to File In Camera, Leopold v. Dep’t of Treasury, Case No. 16-cv-1827 (KBJ) (D.D.C.

Aug. 1, 2017), Dkt. No. 20, at 3 (“Defendants have adequately demonstrated the need for in
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camera review of redacted submissions by representing that redaction of the information that

Defendants intend to make available for in camera inspection is necessary to prevent

interference with Special Counsel Mueller’s investigation, and that revealing more about the

redacted information on the public record would disclose the very information that Defendants

seek to withhold”); see also Hayden v. Nat’l Sec. Agency, 608 F.2d 1381, 1388 (D.C. Cir. 1979)

(relying on affidavit submitted for in camera review to support Exemption 1 claim that “spells

out the[] factors [addressed in the public affidavits] with greater specificity”).

The government’s submission of in camera, ex parte declarations in the present case is

consistent with these longstanding principles concerning procedures in FOIA cases. The

government further attempted to minimize any prejudice to plaintiff (or the interested public) by

filing as much as it could (including other declarations) on the public docket and by seeking

leave to file the additional materials through motions that were also publicly filed, even though

neither D.C. Circuit authority nor the Local Rules required it to do so. See Dkt. Nos. 23, 47.

Further, the government has now chosen to release large portions of these declarations. See

Seidel Decl., Exs. A & B. Thus, the government’s reliance on in camera, ex parte declarations

to provide further explanation of why release of the information subject to plaintiff’s FOIA

request would harm a pending law enforcement investigation has been appropriately limited in

scope as circumstances dictate.

Plaintiff’s request for access to the remaining redactions in these materials would risk

harm to the ongoing investigation by the Special Counsel. Specifically, the portions of the two

declarations that have been redacted would reveal information about the focus and scope of the

Special Counsel Office’s investigation that have not been officially publicly disclosed, and

which if disclosed now could reasonably be expected to cause the types of harms generally
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outlined in those declarations themselves. Seidel Decl. ¶ 9. The FBI cannot provide any further

details publicly about the potential harms because such disclosure would also risk those harms

occurring. Id. Plaintiff’s request for access to these materials should therefore be denied.

B. Plaintiff’s Request for Access to The Ex Parte Proffer Should Also Be Denied

Plaintiff’s request for access to the proffer provided in the live, ex parte hearing should

also be denied. The proffer contains the same category of material as provided in the in camera,

ex parte declarations, that is, explanation of how release of the redacted information could harm

a pending law enforcement investigation. As the Court is aware, this proffer consisted of highly

sensitive information about the Special Counsel’s investigation that had not been officially

disclosed by the government at the time and has not been officially disclosed since; likewise,

disclosure of this information now would still adversely affect the investigation. This is

particularly true given the “degree of media scrutiny” in this case, which means that a risk exists

that even a partial provision of the proffered information would nonetheless invite damaging

conjecture and speculation. In re Application of WP Co. LLC, 201 F. Supp. 3d 109, 128 (D.D.C.

2016); see also United States v. Index Newspapers LLC, 766 F.3d 1072, 1095 (9th Cir. 2014)

(describing circumstances in which redaction of sealed materials may not be appropriate); In re

Search Warrant for Secretarial Area Outside Office of Gunn (“Gunn”), 855 F.2d 569, 574 (8th

Cir. 1988) (agreeing that “line-by-line redaction of the sealed documents was not practicable”);

United States v. Pirk, 282 F. Supp. 3d 585, 602-03 (W.D.N.Y. 2017) (holding that “decision not

to order the disclosure of even a redacted copy of the search warrant affidavit is neither clearly

erroneous nor contrary to law”).

For the reasons detailed above and below, plaintiff has not established that it has any

right to the proffer and the Court should therefore continue to keep the proffer in confidence as
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well. Should the Court determine that more detailed consideration and briefing regarding the

withholding of the proffer (or regarding any of the remaining redactions to the declarations) is

warranted, the government respectfully requests that it be given the opportunity to file a

supplemental declaration, in camera and ex parte if necessary, that addresses issues involved in

withholding this material in more detail.

C. The First Amendment Right of Access Does Not Apply to In Camera and/or Ex
Parte Materials in FOIA Cases

Plaintiff asserts that it is entitled to access to the in camera and/or ex parte materials

either under the First Amendment or the common-law right of access. Neither authority compels

release of such material in the context of a FOIA suit, however. At the outset, it is crucial to

recognize that plaintiff is not requesting access to the records as a party to this case but rather as

a member of the public (or, rather, as a press organization that will make any releases public).

Thus, plaintiff argues that the material it seeks should be released in full “so that … the public

can evaluate the government’s complete rationale for keeping the memos secret for so long and,

as is now clear, for no public benefit.” Pl.’s Access Mot. 1 [Dkt. No. 72]. Plaintiff does not

assert any specific need for the documents in connection with the present litigation.

As plaintiff recognizes, “[n]either the Supreme Court nor [the D.C. Circuit] has applied

the [First Amendment right of access] outside the context of criminal judicial proceedings or the

transcripts of such proceedings.” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d

918, 935 (D.C. Cir. 2003); see also Pl.’s Access Mot. 9 n.2 (citing Dhiab v. Trump, 852 F.3d

1087, 1104 (D.C. Cir. 2017) (the D.C. Circuit has “never found a qualified First Amendment

right [of access to judicial records] outside the criminal context,” though the court has “never

categorically ruled it out” and “many other circuits have concluded that such a right exists in

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civil and even administrative matters”) (Williams, J., concurring)). The D.C. Circuit has found a

qualified First Amendment right of access only to judicial proceedings that are part of the

criminal trial process. See Dhiab, 852 F.3d at 1092 (declining to apply Press-Enterprise Co. v.

Superior Court, 478 U.S. 1, 9 (1986) (“Press-Enterprise II”) because “[u]nlike Dhiab’s case,

which was civil in nature, the underlying action in Press-Enterprise II was a criminal

prosecution [and this] distinction makes a difference”); Ctr. for Nat’l Sec. Studies, 331 F.3d at

935 (declining to find First Amendment right of access to the identities of individuals detained

following 9-11 and information concerning their detention); Washington Post v. Robinson, 935

F.2d 282, 290 (D.C. Cir. 1991) (holding that First Amendment protects public access to plea

agreement on which judgment has been entered). Plaintiff cites no case in which a court in this

Circuit has held that the First Amendment right of access applies in a civil FOIA suit. See Pl.’s

Access Mot. 10 (citing cases from other circuits).

Even if the First Amendment did apply here, it would not require public access to in

camera or ex parte proceedings in a FOIA case. The “experience and logic” test of Press-

Enterprise II is used to determine when a qualified First Amendment right of access exists. This

test does not indicate that a right of access applies to in camera, ex parte submissions in FOIA

cases. With regard to “experience,” such submissions are, as detailed above, historically

accepted in FOIA cases. See Dhiab, 852 F.3d at 1095 (finding “experience” prong not met in

habeas case involving classified information because “there is no tradition of publicizing secret

national security information involved in civil cases, or for that matter, in criminal cases");

United States v. El–Sayegh, 131 F.3d 158, 160-61 (D.C. Cir. 1997) (finding no First Amendment

right of access to withdrawn plea agreement because “it is impossible to say that access to such a

document has historically been available”). With regard to “logic,” FOIA cases challenge the
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government’s claim to an exemption from public release, and in camera, ex parte submissions

are made in such cases when a public filing would reveal the very information for which the

exemption is claimed. It would be entirely illogical to require a government agency to reveal the

very information sought to be protected in order to defend its claim to protection.

Finally, even if the Court were to find a qualified First Amendment right in these

materials, plaintiff would still not be entitled to access. The records may still be protected if

“essential to preserve higher values and … narrowly tailored to serve that interest.” Press-

Enterprise Co. v. Super. Ct., 464 U.S. 501, 510 (1984); see also Pl.’s Access Mot. 11 (breaking

this test into four prongs). As discussed above, the limited withholdings still at issue are

narrowly tailored to serve the “compelling government interest” in protecting a legitimate,

ongoing law enforcement investigation. Gunn, 855 F.2d at 574; see also Virginia Dep’t of State

Police v. Washington Post, 386 F.3d 567, 579 (4th Cir. 2004) (“We note initially our complete

agreement with the general principle that a compelling governmental interest exists in protecting

the integrity of an ongoing law enforcement investigation.”); Robinson, 935 F.2d at 291 (noting

that a threat to an “ongoing criminal investigation” may justify sealing a plea agreement).

Plaintiff’s argument that the government’s withholdings are not “narrowly tailored” (Pl.’s Access

Mot. 11-14) were written before release of the First and Third Archey Declarations in their

present form. Acting Section Chief Seidel explains in his declaration filed with the FBI’s

combined opposition and reply memorandum that the limited remaining redactions to these

declarations are necessary to avoid adversely affecting the still-ongoing investigation, even in

light of the information that is currently publicly known about the investigation. Seidel Decl. ¶

9. The proffer likewise consists of highly sensitive investigative information that had not been

officially disclosed by the government at the time and has not been officially disclosed since,
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disclosure of which would still adversely affect the investigation. The Court should therefore

uphold the government’s withholdings in their current form on the ground that these

withholdings are essential to preserve higher values.

D. The Common-Law Right of Access Does Not Confer Rights Upon the Public to
Review In Camera and/or Ex Parte Materials Filed in FOIA Cases

In the alternative, plaintiff also asserts that the common law right of access to judicial

records entitles it to the materials it seeks. The applicability of the common-law right turns as

well on a multipronged test. See United States v. Hubbard, 650 F.2d 293, 316-323 (D.C. Cir.

1980). Two of the Hubbard prongs, the strength of the generalized property and privacy

interests asserted (prong four) and the possibility of prejudice (prong five), id. at 320-21, weigh

against disclosure here for the reasons stated above, the risk that disclosure could harm the

investigation.

In addition, here, as in Hubbard, another “important element” in this test is “the purposes

for which the documents were introduced” (prong six). 650 F.2d at 321. In Hubbard, the

documents at issue were materials seized from a third party that were introduced by the criminal

defendants for the sole purpose of demonstrating the unlawfulness of the search and seizure. In

other words, defendants sought to introduce the documents to argue that their privacy interests

and those of the third party had been violated. The court concluded this consideration weighed

conclusively against public dissemination of the contents because such dissemination would

“impair the very privacy rights [defendants] seek to vindicate, regardless of the use ultimately

made of the documents by the court.” Id.

The same general principles apply here. FOIA provides an extensive statutory regime for

public access to records and provides for certain exemptions. Moreover, the FOIA statute itself

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expressly provides that a court “may examine the contents of such agency records in camera to

determine whether such records or any part thereof shall be withheld under any of the

exemptions set forth in subsection (b) of this section.” 5 U.S.C. § 552(a)(4)(B). FOIA therefore

expressly contemplates that some withholdings might not be able to be sufficiently explained on

the public record. It would make no sense for Congress to have enacted this balanced scheme of

disclosure and exemption, but then for the courts to mandate that all justifications and

explanations for application of the exemptions must be publicly disclosed. In other words,

requiring disclosure of the in camera and/or ex parte materials explaining the FBI’s assertion of

Exemption 7(A) would “impair the very [Exemption] the[ FBI] seek[s] to vindicate.” On the

other hand, plaintiff’s arguments that the release of the unredacted materials would shed light on

the memos themselves or on the Court’s decision are without merit and, in any event,

uninformed by the subsequent release (with this brief) of the redacted versions of the

declarations.

In sum, the Court should decline to find that the common-law right of access upends the

ordered statutory scheme of FOIA and decline to order disclosure of the unredacted in camera

and/or ex parte materials.

CONCLUSION

For the reasons stated above, plaintiff’s motion for access to sealed judicial records

should be denied.

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Dated: March 1, 2019 Respectfully submitted,


CHAD A. READLER
Principal Deputy Assistant Attorney General
Civil Division

MARCIA BERMAN
Assistant Director, Civil Division

/s/Carol Federighi
CAROL FEDERIGHI
Senior Trial Counsel
United States Department of Justice
Civil Division, Federal Programs Branch
P.O. Box 883
Washington, DC 20044
Phone: (202) 514-1903
Email: carol.federighi@usdoj.gov

Counsel for Defendant

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IN THE UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA

CABLE NEWS NETWORK, INC.,


Civil Action No. 1:17-cv-01167-JEB
Plaintiff,
v.
FEDERAL BUREAU OF INVESTIGATION,

Defendant.

[PROPOSED] ORDER

Upon consideration of Plaintiff’s Motion for Access to Sealed Judicial Records [Dkt. No.

72], the opposition thereto, and the entire record herein, and for good cause shown, it is hereby

ORDERED that Plaintiff’s Motion is DENIED.

So ordered on this _____ day of _____________, 2019.

__________________________________
James E. Boasberg
United States District Judge